The fact of drunkenness will not mitigate the offense, if it was in fact committed willfully, deliberately, and premeditatedly, but it may be proved, and is entitled to weight in so far only as it tends to show that the accused was not in such a state of mind as to be capable of acting with that deliberation and premeditation that is required by the statutes to constitute murder in the first degree.314 (2) Second Degree.-Neither an actual intent to kill nor premeditation is necessary under the statutes to constitute murder in the second degree, but general or implied malice is sufficient, as in the case of murder at common law.315 Drunkenness, therefore, is no defense on a charge of this degree of murder.316 (3) Intent Conceived Before Becoming Drunk.-Even in a prosecution for murder in the first degree, the fact that the accused was drunk when he committed the deed is immaterial, if he had determined to commit it before becoming drunk.317 Pa. 55, 84 Am. Dec. 414, Mikell's Cas. 312; State v. Robinson, 20 W. Va. 713, 43 Am. Rep. 799; People v. Belencia, 21 Cal. 544; People v. Williams, 43 Cal. 344; State v. Johnson, 40 Conn. 136, Beale's Cas. 270; State v. Johnson, 41 Conn. 584; State v. Trivas, 32 La. Ann. 1086, 36 Am. Rep. 293; Schlencker v. State, 9 Neb. 241, 1 N. W. 857; Wilson v. State, 60 N. J. Law, 171, 37 Atl. 954, 38 Atl. 428; People v. Corey, 148 N. Y. 476, 42 N. E. 1066; People v. Leonardi, 143 N. Y. 360, 38 N. E. 372; State v. Faino, 2 Hard. (Del.) 153, 1 Marv. 492; Evers v. State, 31 Tex. Cr. R. 318, 20 S. W. 744, 37 Am. St. Rep. 811. 314 Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. Rep. 232; Shannahan v. Com., 8 Bush (Ky.) 463, 8 Am. Rep. 465; Warner v. State, 56 N. J. Law, 686, 29 Atl. 505, 44 Am. St. Rep. 415; and other cases cited in the note preceding. 315 Post, § 254. 316 Boswell v. Com., 20 Grat. (Va.) 860; State v. Robinson, 20 W. Va. 713, 43 Am. Rep. 799; Jones v. Com., 75 Pa. 403; Wilson v. State, 60 N. J. Law, 171, 37 Atl. 954, 38 Atl. 428; Evers v. State, 31 Tex. Cr. R. 318, 20 S. W. 744, 37 Am. St. Rep. 811. 317 If a man, while sober, deliberately resolves to kill another, and then drinks for the purpose of nerving himself to the commission of the deed, and kills the other when he is so drunk as to be incapable of forming such a design, and temporarily unconscious of what he is (c) Manslaughter. The extent to which drunkenness may be shown at common law to reduce a homicide from murder to voluntary manslaughter is not altogether clear.318 The weight of authority is in favor of the rule that, if the homicide was committed after such provocation as the law deems adequate to reduce a killing under the influence of passion and heat of blood caused thereby to manslaughter, evidence that the accused was drunk at the time of the homicide may be admitted and considered in determining whether the killing was in the heat of blood caused by the provocation, or whether it was with malice,319 But it must be regarded as settled that the mere fact of drunkenness will not reduce to manslaughter a homicide committed on inadequate provocation, or on adequate provocation after the lapse of a reasonable time for the blood to cool. In other words, if the provocation would not reduce a homicide by a sober man from murder to manslaughter, it will not so reduce a homicide by a drunken man.320 doing, he is still guilty of murder in the first degree. State v. Robinson, 20 W. Va. 713, 43 Am. Rep. 799; Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. Rep. 232. 318 As to what constitutes voluntary manslaughter, see post, § 255 et seq. 319 Rex v. Thomas, 7 Car. & P. 817, Mikell's Cas. 311; Marshall's Case, 1 Lewin, C. C. 76, Mikell's Cas. 311; People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484, Beale's Cas. 264. See, also, McIntyre v. People, 38 Ill. 514; Rafferty v. People, 66 Ill. 118; Malone v. State, 49 Ga. 210; Shannahan v. Com., 8 Bush (Ky.) 463, 8 Am. Rep. 465. And see Pearson's Case, 2 Lewin, C. C. 144, Beale's Cas. 261. 320 Rex v. Carroll, 7 Car. & P. 145; People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484, Beale's Cas. 264; Shannahan v. Com., 8 Bush (Ky.) 463, 8 Am. Rep. 465; Com. v. Hawkins, 3 Gray (Mass.) 463; Keenan v. Com., 44 Pa. 55, 84 Am. Dec. 414, Mikell's Cas. 312; Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. Rep. 232; McIntyre v. People, 38 Ill. 514; Rafferty v. People, 66 Ill. 118; State v. Tatro, 50 Vt. 483. In Shannahan v. Com., supra, it was said: "The proper rule is that one in a state of voluntary intoxication is subject to the same rule of conduct, and to the same rules and principles of law, that a sober man is; and that, where a provocation is offered, and the one IX. RESPONSIBILITY OF CORPORATIONS. 109. In General.-A corporation is liable to indictment: 1. For nonfeasance. 2. By the weight of authority, for misfeasance, if the of- 4. It is not indictable for felony. 110. Nonfeasance. In view of the fact that a corporation is, in the language of Chief Justice Marshall, "an artificial being, invisible, intangible, and existing only in contemplation of law," it was at one time doubted whether a corporation could be guilty of any crime. Lord Holt is reported as having said that "a corporation is not indictable, but the particular members of it are."321 This, however, is not now the law. A corporation cannot be imprisoned, but it may be deprived of its charter, or it may be fined; and it is now well settled that it may be indicted and fined for offenses consisting in mere nonfeasance, as for failure to repair a public road or a bridge, or to perform other duties imposed upon it by law. 322 offering it is killed, if it mitigates the offense of the man drunk, it should also mitigate the offense of the man sober." 321 Anon., 12 Mod. 559, Mikell's Cas. 328. 322 Reg. v. Birmingham & G. R. Co., 3 Q. B. 223, 9 Car. & P. 469; U. S. v. John Kelso Co., 86 Fed. 304, Mikell's Cas. 328; Louisville, etc., R. Co. v. Com., 13 Bush (Ky.) 388, 26 Am. Rep. 205; State v. City of Portland, 74 Me. 268, 43 Am. Rep. 586; State v. Godwinsville, etc., Road Co., 49 N. J. Law, 266, 10 Atl. 666, 60 Am. Rep. 611; New York & G. L. R. Co. v. State, 50 N. J. Law, 303, 13 Atl. 1, 53 N. J. Law, 244, 23 Atl. 168; Susquehanna & B. Turnpike Road Co. v. People, 15 Wend. (N. Y.) 267; People v. Albany Corp., 11 Wend. (N. Y.) 539, 27 Am. Dec. 95; Delaware Division Canal Co. v. Com., 60 Pa. 367, 100 Am. Dec. 570; Louisville, etc., R. Co. v. State, 3 Head (Tenn.) 523, 75 111. Misfeasance. In several of the earlier cases a distinction was made, with respect to the criminal responsibility of corporations, between nonfeasance and misfeasance, and, while it was conceded that Am. Dec. 778; State v. Monongahela River R. Co., 37 W. Va. 108, 16 S. E. 519; Com. v. Central Bridge Corp., 12 Cush. (Mass.) 242. And see Clark & M. Priv. Corp. § 247; 7 Am. & Eng. Enc. Law (2d Ed.) 841, 842. It was said by Bigelow, J., in Com. v. Proprietors of New Bedford Bridge, 2 Gray (Mass.) 339, Beale's Cas. 277: "Corporations cannot be indicted for offenses which derive their criminality from evil intention, or which consist in a violation of those social duties which appertain to men and subjects. They cannot be guilty of treason or felony, of perjury, or offenses against the person. But beyond this there is no good reason for their exemption from the consequences of unlawful and wrongful acts committed by their agents in pursuance of authority derived from them. Such a rule would, in many cases, preclude all adequate remedy, and render reparation for an injury committed by a corporation impossible, because it would leave the only means of redress to be sought against those who truly committed the wrongful act by commanding it to be done. There is no principle of law which would thus furnish immunity to a corporation. If they commit a trespass on private property, or obstruct a way, to the special injury and damage of an individual, no one can doubt their liabilty therefor. In like manner, and for the same reason, if they do similar acts, to the inconvenience and annoyance of the public, they are responsible in the form and mode appropriate to the prosecution and punishment of such offenses." Thus, in Susquehanna & B. Turnpike Road Co. v. People, 15 Wend. (N. Y.) 267, it was held that a turnpike-road company was liable to indictment at common law for suffering its road to be out of repair. And in Com. v. Central Bridge Corp., 12 Cush. (Mass.) 242, it was held that a provision in the charter of a toll-bridge corporation, that the bridge should "at all times be kept in good, safe, and passable repair," required the company to light the bridge, if necessary to make it safe and convenient for passage at night, and that an indictment would lie for failure to do so. And in Louisville, etc., R. Co. v. Com., 13 Bush (Ky.) 388, 26 Am. Rep. 205, it was held that it was the duty of a railroad company to cause signals to be given, where the safety of travelers on intersecting roads demanded that a warning should be given of approaching trains, and that an habitual failure to give such signals or warnings was an indictable nuisance. an indictment would lie for nonfeasance, it was held that it would not lie for misfeasance, as for a nuisance in erecting a dam across a navigable river,323 or in obstructing a highway by digging it up and placing stones and dirt therein.324 This view, however, has been almost universally repudiated, and . it may now be regarded as settled that a corporation may be indicted for misfeasance as well as for nonfeasance.325 Thus, indictments have been sustained against railroad companies and other corporations for obstructing a highway by positive acts, as by cutting through the same, ,326 by permitting their engines and cars to remain on the track at highway intersections,326a or by building station houses, depots, or other structures thereon.327 Indictments have also been sustained against corporations for contempt, 327a for creating a nuisance by building a bridge 323 State v. Great Works Milling, etc., Co., 20 Me. 41, 37 Am. Dec. 38. Contra, State v. City of Portland, 74 Me. 268, 43 Am. Rep. 586. 224 Com. v. Swift Run Gap Turnpike Co., 2 Va. Cas. 362; State v. Ohio & M. R. Co., 23 Ind. 362. 325 Reg. v. Great North of England R. Co., 9 Q. B. 315; State v. Passaic County Agr. Soc., 54 N. J. Law, 260, 23 Atl. 680; Com. v. Proprietors of New Bedford Bridge, 2 Gray (Mass.) 339, Beale's Cas. 277; Palatka, etc., R. Co. v. State, 23 Fla. 546, 3 So. 158, 11 Am. St. Rep. 395; Delaware Division Canal Co. v. Com., 60 Pa. 367, 100 Am. Dec. 570; State v. City of Portland, 74 Me. 268, 43 Am. Rep. 586; State v. Atchison, 3 Lea (Tenn.) 729, 31 Am. Rep. 663; State v. Baltimore & O. R. Co., 15 W. Va. 362, 26 Am. Rep. 803; Com. v. Pulaski County Agr. & M. Ass'n, 92 Ky. 197, 17 S. W. 442. "When a statute in general terms prohibits the doing of an act which can be performed by a corporation, and does not expressly exempt corporations from its provisions, there is no reason why such statute should be construed as not applying to them when the punishment provided for its infraction is one that can be inflicted upon a corporation, as, for instance, a fine." De Haven, J., in U. S. v. John Kelso Co., 86 Fed. 304, Mikell's Cas. 328. 326 Reg. v. Great North of England R. Co., 9 Q. B. 315. 326a State v. Western N. C. R. Co., 95 N. C. 602. 327 State v. Morris & E. R. Co., 23 N. J. Law, 360; State v. Vermont Cent. R. Co., 27 Vt. 103. 327a Telegram Newspaper Co. v. Com., 172 Mass. 294, 52 N. E. 445; Clark & M. Priv. Corp. 662, and cases cited. |